The chapter analyses Pufendorf’s comprehensive account of the civil condition that arises through the institution of new civil personae that replace those of the natural condition and are governed by sui generis principles and values. The basic principles for civic life are laid down through discussions of civil law (denying Hobbes’s identification of it with natural law), punishment, social value (“esteem”), and public power over property, all of which are treated in terms of the transition from the natural to the civil condition and founded in civic purposes, not in nature. This transition is not considered as a transfer of natural morality into the civil sphere, but rather in terms of the requirements of a civil order grounded in civil sovereignty and the civil state as an imposed status or condition. The same argument applies to “the right of war which accompanies a natural state <but> is taken away from individuals in a state”. Once the right of war is considered a matter for the sovereign alone, it must be part of Pufendorf’s account of civil society, an arrangement that underlines his insistence that there is no law of nations distinct from natural law, as discussed in ch. 10.

Pufendorf’s reception and impact are not without paradox. Together with Grotius his name became a byword for natural law in his lifetime and has remained so. He was the key figure in the institutionalisation of natural law as an academic subject with wide-ranging extra-academic effect. Yet, his views were so widely and deeply contested from their publication that their original meaning and function mostly were lost sight of. Consequently, he has been subjected to a range of teleological interpretations that have persisted into contemporary scholarship, the most prominent being to see him as a proto-Enlightenment theorist of sociability and stadial history. His broad basis in erudite humanist scholarship was lost sight of, his ideas on constitutional law, ecclesiology and theology, and historiography being parcelled up along disciplinary lines. The effect was a narrowing of his legacy and with it the discipline of natural law in both moral philosophy and jurisprudence. This was despite his main commentator, Barbeyrac, himself being one of the last humanist scholars in natural law. The chapter discusses a range of the contestations about Pufendorf, including the remarkable contribution of Samuel Cocceji.

Pacts or “social contracts” form the basis of sovereignty in many early modern theories of political authority, and in Pufendorf’s too. Most such theories treat the pact as the means by which a pre-existing right—for example, divine right, or the natural right of individuals grounded in their strength, reason, or property—is transferred to a sovereign on the condition that the right be protected, to be rescinded if it is not. For Pufendorf, however, there is no pre-existing right since the sovereignty pact creates a new right—the right to issue unchallengeable commands for the purposes of achieving social peace—by instituting two new moral personae: the citizen who obeys the sovereign in exchange for protection, and the sovereign invested with the right of absolute command to provide social peace. Since Pufendorf’s sovereignty is constituted not by a prior moral right, but rather by the capacity to exercise unchallengeable authority for the end of social peace, there is no naturally rightful form of government. Pufendorf thus takes a neutral and pluralistic view of the three traditional forms of government—monarchical, aristocratic and democratic—insofar as each is capable of exercising the capacity for sovereign rule.

Scottish moral philosophy was two-sided, concerned partly with the human propensity to certain types of behaviour, partly with our ability to appreciate the moral worth of such behaviour in ourselves and in others. The behavioural aspect seen as – and sometimes called – practical ethics, while the concern with moral judgment was considered to be purely metaphysical and part of the theory of the mind. Natural jurisprudence was the central part of practical ethics that dealt with the virtue of justice understood as the sum of our duties and associated rights, and a central task for this intellectual and academic discipline was to explain why some parts of justice were distinguished from the rest of the virtues by being the subject of the institutions of justice, namely adjudication, law and legislation. All the Scottish thinkers saw themselves as Newtonians concerned with the empirical demonstration of the regularities of the physical and the moral realms, most of them (Hutcheson, Turnbull, the Moderates, the Common Sense thinkers) taking these regularities to be evidence of a divinely instituted order and purpose in the world. Hume and Smith took a different view of the metaphysics of moral and hence of moral science and natural jurisprudence.

David Hume believed that most of the views about society and politics prevalent in his day had roots in one or another of “two species of false religion,” superstition and enthusiasm. Both were developments of conflicting theological doctrines that appealed to two different types of personalities. Both had come to be associated with opposing political interests. Both sprang from ignorance. And, while the two species had been universally present in society and in individuals in varying degrees throughout history, the peculiarity of modern post-Reformation Europe was the violent oscillation between them, as evidenced by them any wars of religion. Their more extreme adherents were also, not least, responsible for the plight of modern Britain, both north and south. One of the tasks of the philosophical historian, Hume believed, was to explain the preponderance at particular times of one or the other of these persuasions. The task he set for his political theory was to explain why both were philosophically misconceived, empirically untenable, and, in their extreme forms, politically dangerous.

THE POLITICS OF RELIGION

One part of humanity, Hume notes, has a tendency to “weakness, fear, [and] melancholy, together with ignorance.” In this state the imagination conjures up forces operating under the surface, and the mind is prone to grasp methods of influencing these forces by “ceremonies, observances, mortifications, sacrifices, presents, or [by] any practice, however absurd or frivolous which either folly or knavery recommends to a blind and terrified credulity.”

The reception of modern natural law

In order to appreciate the role of natural law in the eighteenth century, it is important to note that most Protestant Europeans saw it as a modern phenomenon. Seventeenth- and eighteenth-century thinkers were well aware that natural law was prominent in both ancient and medieval thought, but in their eyes it acquired a new role with the division of Christianity and the emergence of modern statehood. The concern of modern natural law was to find a basis for moral life that, without conflicting with the tenets of Christianity, was neutral with respect to confessional religion. Natural law was thus central to one of the defining debates of the Enlightenment, namely whether and to what extent the cognitive, including moral, powers of humanity were adequate to the conduct of life in this world. While all the sciences were invoked to this purpose, in discussions of the foundation, nature, and extent of natural law, that central issue was particularly explicit.

The debate ran deep in every Protestant community – Reformed, Lutheran, and episcopalian – for at issue was the basis for the social world. Natural law’s replacement of revealed religion with natural religion led to a highly ambivalent view of morality and its institutional forms, ranging from the family and the economy to the state, as either the creation or the expression of natural man. Not least, the idea of religion as both a common bond and a shield between ruler and ruled was called into question, as was the status of the church.